State ex rel. Sims v. Perry

• Decision Date: 26 March 1999
• Docket Number: No. 25629.,25629.
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. John G. SIMS, Prosecuting Attorney for Logan County, West Virginia, Petitioner, v. Honorable Roger L. PERRY, Judge of the Circuit Court of Logan County, and Tommy Dean Hunt, Respondents.

515 S.E.2d 582

204 W.Va. 625

STATE of West Virginia ex rel. John G. SIMS, Prosecuting Attorney for Logan County, West Virginia, Petitioner, v. Honorable Roger L. PERRY, Judge of the Circuit Court of Logan County, and Tommy Dean Hunt, Respondents.

No. 25629.

Supreme Court of Appeals of West Virginia.

Submitted February 16, 1999.

Decided March 26, 1999.

Kathleen B. Murphy, Chief Assistant Prosecuting Attorney for Logan County, Logan, West Virginia, Attorney for the Petitioner.

Donald C. Wandling, Avis, Witten & Wandling, Logan, West Virginia, Attorney for the Respondent, Tommy Dean Hunt.

DAVIS, Justice:

In this original proceeding in prohibition, the State seeks to prohibit the Circuit Court of Logan County from enforcing its order suppressing incriminating statements made by the defendant, Tommy Dean Hunt [hereinafter "Hunt"], to a confidential police informant regarding activities that had been the subject of earlier criminal charges against Hunt, which charges had been dismissed approximately two years prior to his incriminating statements. Following Hunt's incriminating statements, he was again charged with criminal offenses identical to those that had previously been dismissed. The circuit court granted Hunt's motion to suppress his statements based upon its findings that the State violated Hunt's Sixth Amendment right to the assistance of counsel and that the State acted in such a way so as to avoid the procedural dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We conclude that Hunt's Sixth Amendment right to the assistance of counsel was not violated as no related judicial proceedings were pending against him at the time of his incriminating statements. Furthermore, we find that no evidence was presented to show that the State acted to avoid Miranda. Consequently, the writ of prohibition is granted.

I. FACTUAL AND PROCEDURAL HISTORY

The basic facts underlying this petition are undisputed. In June, 1995, Hunt, defendant below and respondent herein, was charged with two counts of first degree arson, in violation of W. Va.Code § 61-3-1 (1935) (Repl.Vol.1992), and one count of burning or attempting to burn insured property, in violation of W. Va.Code § 61-3-5 (1935) (Repl.Vol.1992), in connection with the destruction of his home by fire. At his arraignment, Hunt indicated that he wished to hire his own attorney and requested a preliminary hearing. Prior to the preliminary hearing, Hunt retained attorney Donald Wandling to represent him with respect to the above-described charges. The preliminary hearing was then held before the Magistrate Court of Logan County on August 17, 1995. At the conclusion of the hearing, the magistrate dismissed the case for lack of sufficient evidence to support the charges. The State objected to the dismissal. The State submits that after the charges against Hunt were dismissed, the investigation remained open but was not actively pursued.

Two years later, in August 1997, law enforcement officers obtained new information connecting Hunt to the burning of his home.¹ Specifically, the officers were informed that David Bumgardner [hereinafter "Bumgardner"] had been hired by Hunt to burn the home. Consequently, the officers enlisted Bumgardner's cooperation to obtain incriminating statements from Hunt. Bumgardner was equipped with a wireless transmitter and dispatched to Hunt's residence. During Bumgardner's visit, Hunt, in fact, made incriminating statements regarding the fire, which were recorded by virtue of the transmitter concealed on Bumgardner. As a result of the incriminating statements, Hunt was again charged with the same offenses that had previously been dismissed. After Hunt's subsequent indictment on those charges, the State sought to use the recording and/or transcript of the conversation between Hunt and Bumgardner in its case-in-chief.

Hunt's counsel filed a motion to suppress evidence of the conversation. Apparently, defense counsel argued that the evidence was taken in violation of Hunt's right to counsel and without his having been advised of his constitutional rights. Hunt evidently argued that his right to counsel had previously attached in 1995 when he had first been charged with the same offenses. Following a hearing on Hunt's motion to suppress, by order entered December 10, 1998, the Circuit Court of Logan County granted the motion. The court's order stated:

THEREFORE, the Court FINDS that at the time the statement was obtained the defendant was clearly a suspect and had been previously charged. Therefore, the Court FINDS that the statement taken was in such a way so as to avoid Miranda and in violation of the defendant's Sixth Amendment Right to counsel as in Massiah and Brewer and their progeny.

Thereafter, counsel for the State asked the court to make two additional findings, to which Hunt did not object. Consequently, the court additionally found:

1. That the charges against the defendant were not voluntarily dismissed by the State in an effort to facilitate the taking of the statement and that there is no connection between the dismissal and the statement;

2. That no judicial proceedings of any kind were pending against the defendant at the time the statement was obtained.

After a subsequent hearing in this case, the circuit court, by another order also entered on December 10, 1998, reiterated its ruling on Hunt's motion to suppress and, following factors set forth in State v. Leadingham, 190 W.Va. 482, 488-89, 438 S.E.2d 825, 831-32 (1993),² concluded:

1. That the State through use of an agent intentionally created a situation likely to induce the defendant to make incriminating statements without assistance of counsel.

2. That the statements related to the offense for which the defendant had been charged and the right to counsel had attached.

3. That the police knowingly circumvented the right to counsel in deliberately elicited [sic] the statements.

4. That the police and the undercover agent took some action beyond mere listening to induce the statements.

The State then filed a petition for writ of prohibition in this Court seeking to prohibit the Circuit Court of Logan County from enforcing its decision suppressing the evidence of Hunt's incriminating statements. We granted a rule to show cause. We now grant the writ of prohibition.

II. STANDARD FOR WRIT OF PROHIBITION

It has long been established that "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va.Code, 53-1-1." Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). Accord Syl. pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953). The case sub judice is a criminal case in which the State seeks to prohibit the circuit judge from enforcing an order suppressing evidence that is critical to the State's case against defendant Hunt. The State does not argue that the trial court was without jurisdiction. Thus, it appears that the State's complaint is that the court exceeded its legitimate powers by entering its order suppressing evidence. In this regard, we have previously held:

The State may seek a writ of prohibition in this Court in a criminal case where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims that the trial court abused its legitimate powers, the State must demonstrate that the court's action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction. In any event, the prohibition proceeding must offend neither the Double Jeopardy Clause nor the defendant's right to a speedy trial. Furthermore, the application for a writ of prohibition must be promptly presented.

Syl. pt. 5, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992). Consequently, in addition to addressing the substantive issues raised by the parties, we must also consider whether any error that may have been committed by the court was so flagrant that it effectively deprived the State of its right to prosecute this case.

Furthermore, because the order sought to be prohibited is one suppressing evidence, in deciding whether the lower court abused its legitimate powers we will apply a de novo standard of review to the legal conclusions made by the court and review its factual determinations for clear error. State v. Honaker, 193 W.Va. 51, 56, 454 S.E.2d 96, 101 (1994) ("We review de novo legal conclusions involved in suppression determinations. The factual determinations involving those legal conclusions are reviewed under the clearly erroneous standard." (citing State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994), and State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994))). With due consideration for the standards set forth above, we proceed to consider the issues raised by the parties.

III. DISCUSSION

The State raises two issues related to the lower court's decision to grant Hunt's motion to suppress. First, the State argues that the circuit court erred in granting Hunt's motion to suppress his incriminating statements on the ground that the State violated his Sixth Amendment right to counsel in obtaining the statements. Next, the State argues that the circuit court erred in concluding that the State obtained Hunt's statements by acting "in such a way so as to avoid Miranda." We address each of these issues in turn.

A. Sixth Amendment Right to Counsel

To support its argument that the circuit court erred in granting Hunt's motion to suppress his incriminating statements on the ground that the State violated his Sixth Amendment right to counsel in obtaining the statements, the State first contends that the defendant should not be allowed to hide behind the Sixth Amendment in an effort to thwart the legitimate investigation of a crime once the charges against him have...